Erwin Chemerinsky: Corporations and freedom of religion?

BELIEFS

"The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff's religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff's religious beliefs," federal court of appeals Judge Harry Edwards explained in an opinion last week.

Can a corporation claim to have religious beliefs and if so, does it violate them to force the business to include contraceptive coverage in the health insurance it provides its employees? The federal courts of appeals are split on this question and it is almost sure to be heard and decided by the Supreme Court in the months ahead. There are fascinating legal questions, but the answer should be clear: requiring insurance overage to pay for contraceptives does not violate the law.

The Patient Protection and Affordable Care Act required that the Department of Health and Human Services promulgate regulations to ensure that insurers provide coverage for preventative medical care. These regulations mandate that employers include in their insurance coverage payments for contraceptives. There are exceptions for religious institutions, so the Catholic Church or a Catholic university would not need to provide this in their insurance coverage.

Corporations that are not religiously affiliated in any way have challenged this and said that they wish to operate in accord with the Catholic Church and do not wish to provide contraceptive coverage. Their claims are brought under a federal statute, the Religious Freedom Restoration Act, which says that the government can significantly burden religious freedom only if its action is necessary to achieve a compelling government purpose.

The threshold question in these challenges is whether a corporation that is otherwise secular can claim to have a “religion.” For example, one of the cases was brought by Hobby Lobby, a corporation which has over 500 stores in 41 states and employs over 20,000 people.

Never before has the Supreme Court allowed secular corporations to claim religious freedom. Nor does it make sense to allow this. People create corporations to protect themselves from liability. By making the corporation a separate entity, the investors are liable only to the extent of their investment. The corporation is an entity that is treated as legally separate from the individuals who run it or own it. They cannot then claim that they want this distinct entity to operate by their religious beliefs.

Free exercise of religion is based on protecting an individual's ability to follow his or her religious beliefs. But a corporation cannot have beliefs, religious or otherwise. In recent years, the court has accorded free speech rights to corporations, but in doing so it always has explained that this is because allowing more speech will further the underlying goal of the First Amendment of people being better informed. This has no application to the question of whether corporations can claim religious freedom.

Moreover, even if corporations can claim to have religious beliefs, requiring that their insurance include coverage for contraception does not burden or violate their rights. The companies, and their owners and officers and directors, are not required to use or endorse contraception. In fact, they remain free to openly oppose the use of contraceptives. The federal regulations do nothing more than require that the company provide an insurance policy which includes coverage for contraception.

Even if corporations could claim free exercise of religion and even if the contraceptive mandate was seen as infringing it, the law still would be constitutional because it advances a fundamental constitutional right. For almost a half century, the Supreme Court has held that people have the fundamental right to control their reproductive autonomy. This includes the right to purchase and use contraceptives. The government has a compelling interest in helping to facilitate the ability of people, and especially women, to exercise this basic right of reproductive autonomy. The costs of contraceptives and the costs of an unwanted pregnancy fall disproportionately on women.

At this point, the federal courts of appeals are split on these questions. Like everything with the Affordable Care Act, the judges are divided along ideological and political lines. For example, the federal court of appeals in Washington, D.C. split 2-1, with the two judges appointed by Republicans voting to declare unconstitutional the mandate for insurance coverage, while the judge appointed by a Democratic president voted to uphold it.

Hopefully, though, the Supreme Court will transcend this and hold clearly and simply that the federal regulations are constitutional; corporations don't have religious freedom. Even if they do, the contraceptive mandate is constitutional.

Erwin Chemerinsky is dean of the UC Irvine School of Law.

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